Reducing the Total Cost of E-Discovery Through Process Refinements

In a previous article, we discussed key technology and platform-related factors that can have a dramatic impact on an organization's long-term e-discovery spending. Today it's time to look at e-discovery processes across the phases of the EDRM. Having the right technology is essential to containing costs. Don't, however, overlook the power of a thoughtful and disciplined approach process incorporating incremental improvements at each discovery stage.

So how do you proceed in a way that minimizes waste, maximizes efficiency and makes the most of the tools you have in place?

If you haven't already, you should create a team of key stakeholders in your organization and develop a detailed e-discovery action plan—complete with checklists—based in part on the information provided in this article. Then implement the plan as individual matters arise, assess results and update your plan on a regular basis. The planning should establish key performance indicators (KPIs) so you have a data-based method of evaluating success and refining your processes over time. When you can identify the kinks in the process orchestration and address them directly, you increase transparency, predictability and defensibility—and ultimately that saves you money.

Information Governance

Most people begin by looking at the preservation and legal hold stage, but the often-missed step prior to that stage is a rock-solid information governance (IG) plan. In a nutshell, (IG) is simply knowing the “what” and the “where” of all electronically stored information (ESI) created within your organization before litigation takes place. If you are serious about reducing cost, start here.

IG must be a corporate priority with support and investment from all parties starting at the top. Create a cross-functional IG committee and establish a regular meeting schedule. That IG committee should create a sustainable process that covers key areas such as data mapping, data retention schedules, supporting technology, and regular compliance checks. With the right IG policies and procedures in place, should litigation or an internal investigation arise, placing a legal hold and preserving the right documents will be much easier and defensible.

Preservation and Legal Hold

Once a legal hold has been initiated, your organization's duty to provide a written directive to advise custodians to preserve potentially relevant evidence, including certain documents and electronically-stored information (ESI), in anticipation of future litigation. Documented communication and clearly defined responsibilities and procedures keep this process efficient. Designate responsibilities and outline proper procedures for responding to a legal hold including the identification of sources of data subject to preservation like email servers, personal devices, shared drives, databases, backup systems, etc.

Tip: It's rarely clear in the early days of a matter which employees have relevant documents or the key issues underlying the matter. Go straight to the source and interview key custodians utilizing a simple, consistent questionnaire, and clear procedures for aggregating responses. You can find templates and checklists from Duke Law's online EDRM resource to serve as a foundation for creating a custom form and process for the organization.

Defensible Collection

Collection is the e-discovery phase wherein the most relevant data is gathered and prepared for review. This step requires clearly defined roles and effective communication between IT and legal, as well as a robust tracking and reporting process to verify completeness of collection and processing activities.

Based on the advice of counsel, determine whether your internal IT team should collect the data or if a special forensic data collections company should be utilized to capture the data working alongside your IT team. If a forensic collection is required, utilize one from a pre-established approved forensic collections vendor list or ask your e-discovery vendor for a recommendation. If collecting internally, your e-discovery action plan should have clearly defined collection roles and responsibilities for legal and IT personnel. Your action plan should define collection sources, the appropriate collection method (logical copy, forensic image, etc.), and secure transmission to in-house counsel or your e-discovery vendor.

Tip: Over-collection is one of the leading drivers of exorbitant e-discovery spending. One way to avoid collecting too broadly is to “tier” the collection so that the custodians and data sources most likely to possess relevant data are targeted first and lower tier sources are only brought into the collection plan as needed. Utilize targeted collection capabilities (date ranges, keywords, custodians, etc.).

Early Case Assessment

Think of early case assessment (ECA) as a way of leveraging the digital nature of ESI by conducting data analysis on a representative sample of likely-relevant data before collection takes place. The primary objective of ECA is to comprehensively evaluate your legal liability and potential costs at the outset. Another goal, with support of the right ECA and analytics tool, is to guide case strategy, including the fundamental decision of whether to go to trial or settle.

For each individual matter, identify highly relevant, Tier 1 documents and make an initial assessment of legal liability and of the strengths and weaknesses of your organization's position. Build out a collection scenario with volume and cost figures based on different discovery parameters (custodian counts, data sources, keywords, etc.). Also compare the economic value (i.e., the amount at stake) of the matter at hand versus potential e-discovery costs.

Tip: Many litigants regard court-mandated meet-and-confers with opposing counsel as a legal formality. They're not. A strong ECA process should equip you with enough actionable data going into the meet-and-confer to counter disproportionate e-discovery requests from the other side. That's another important way to save money.

Processing

Once you have performed your collection, and while ECA is underway, the data needs to be processed into an efficiently reviewable format and so that all details about the data, including metadata can be captured. Costs will vary widely here, depending on your service provider, because there are several pricing models used within the industry: per-GB, flat fee or bundled (e.g., with hosting and production). In addition, it is important to understand data processing timelines (which is dependent on the volume of data and how clean the data is) as well as what file types are being processed.

Tip: It's a good idea to pool your data as much as possible before sending it out for processing if you are being charged technical time for this service. Sending a few GB each day instead of once a week will inflate your technical time costs. Depending on how much data is being processed and how clean it is, a small amount of data can sometimes take as much time as a large amount.

Review

Evaluating ESI for relevance and privilege, content and context can be the single most expensive component of pursuing a legal matter, especially when much of the review process is performed manually.

To prepare for cost-effective review at the planning stage, identify your preferred options for methods of review. This may involve creating specific decision criteria for the selection of review methodology (manual, technology assisted or a combination of the two). Be sure to evaluate your capacity for conducting review internally before transferring to outside counsel. Identify and document procedures for engaging third-party resources to assist with review efforts and establish a preferred vendor list. Define KPIs and run reports to assess the quality and performance of document reviewers (internal or external), focusing on review speed and review accuracy.

Tip: Some estimates suggest that reviewing documents for privilege typically consumes 80 percent or more of the review budget. Federal Rule of Evidence (FRE) 502(d) allows parties to enter into non-waiver agreements so that privilege remains protected even in the event that privileged documents are turned over to the other side. FRE 502(d) won't eliminate the need to conduct privilege reviews but it can help you streamline the process so that it's not quite so costly.

Production

The key to productions is defining the right set of production specs and communicating that early. Conduct QC as part of the review process—not just production process. Understand how the size and speed of production (i.e. variable costs) are primarily linked to chosen production format and how much it may cost. For example, do your production images need to be in color or will black and white suffice? It is common knowledge that color files are surprisingly larger than black and white. Larger data equals larger hosting size and thus likely increased costs. Pricing model will also be a factor here. Consider whether you are being charged by page, by production data size or technical time. Other factors to consider include: confidentiality designations, native vs. tiff productions, and placeholders.

Tip: Design your production plan around your pricing model. Rolling productions are fine to manage monthly bills (i.e., charges spread out across several invoices) if you are billed per page or volume size. If you are paying for technical time, follow the advice for pooling processing requests (i.e., no producing one document per day, if at all possible).

David Carns is the Chief Strategy Officer of Casepoint LLC. He joined Casepoint as a Director of Client Services in 2010, rose the ranks to Executive Vice President until his most recent promotion in 2017. In addition to being a recovering attorney, David possesses a lifelong passion for technology and its advancements. His career has always found him at the intersection of technology and the legal field given his intimate knowledge of both.